In All Answers Ltd v W, and R, the claimants alleged that they were subjected to acts by their employer in August 2018 which gave rise to disability discrimination. Both claimants argued that they were suffering from depression and anxiety and that these impairments met the definition of a disability for the purposes of the Equality Act 2010.

Section 6 of the Equality Act states that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Schedule 1 of the Act states that an impairment is ‘long-term’ if it has lasted or is likely to last 12 months.

The employment tribunal decided that both claimants were disabled finding that the effect of their mental impairment was long term, and that they remained disabled at the time of the hearing in October 2019. The employer appealed to the Employment Appeal Tribunal who dismissed the appeal.

In deciding whether the effect of the impairment was likely to last 12 months, the employment tribunal ought to have made that assessment by reference to the dates of the alleged acts of discrimination. The EAT found that although the tribunal had not focused on those dates, it had properly considered the issues by looking at the effect of the impairments both before and after the alleged discriminatory acts to show that they were long term.

The Court of Appeal allowed the employer’s appeal finding that the assessment as to whether the impairments were likely to last 12 months had not been done with reference to the facts which existed at the date of the alleged discriminatory acts. The Court referred to the “marked absence” of any reference to that date and stated that any events which occurred after it were not relevant in assessing the 12 month likelihood.

The Court noted that the tribunal’s judgment was written in the present tense and that the phrases “Is Mr W disabled”?; “He suffers” from a mental impairment; “Is clearly long term;” disabled “and remains so” – further indicated that the issues had been looked at as at the date of the hearing and not at the relevant date.

The Court of Appeal has referred the case back to the employment tribunals to undertake the proper assessment.


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